PUBLIC NOTICE: Request for Comment on DRAFT Amendments to the DBHDS Licensing Regulations (12VAC35-105) to Comply with Requirements of the U.S. Department of Justice’s Settlement Agreement with Virginia.  The goal of the draft amendments is to address the concerns of health and safety of individuals receiving services from DBHDS-licensed providers of adult services.

Background

Since the Settlement Agreement between the Commonwealth and the United States Department of Justice (DOJ) was signed, a number of significant changes in the system have occurred.  Most recently, in 2017 the definition of the term “developmental disability” was expanded to include "intellectual disability" in the Code of Virginia.  In 2016, the Medicaid Waivers underwent needed changes.  Also since the Settlement Agreement was signed, DOJ and the court’s appointed Settlement Agreement Independent Reviewer have commented on the need for changes to the Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (“Licensing Regulations”) in order to comply with the Settlement Agreement.

During the most recent open status hearing regarding implementation of the Settlement Agreement in the United States District Court for the Eastern District of Virginia on December 19, 2017, the Court specifically asked about the status of changes to the Licensing Regulations. 

This followed the Settlement Agreement Independent Reviewer’s 11th Report to the Court, dated December 13, 2017, which stated the following regarding the Licensing Regulations [underline added]:

The DBHDS Licensing Regulations have long been, and continue to be, an obstacle to substantial progress toward compliance with many provisions of the Settlement Agreement...  Its licensing regulations continue, however, to restrict the Commonwealth from requiring submission of information or attendance at trainings related to developing the required quality and risk management processes.  Its most recent draft revisions to the Licensing Regulations, dated July 17, 2017, [correction: dated July 7, 2017] show an improved alignment with some provisions of the Agreement, including a clarification of expectations around root cause analysis, risk triggers and thresholds, risk management programs and quality improvement programs. … … It is the Independent Reviewer’s considered opinion that, without revisions to its Licensing Rules and Regulations, the Commonwealth will continue to be unable to make substantial progress toward implementing the required quality and risk management system…

Therefore, notice is hereby given of the following draft amendments to an existing regulation relating to licensed providers. [Note: Amendments in current regulatory actions (ex. QMHP's) are not reflected here; only current language is used.]

The draft amendments are posted on the DBHDS website for public comment through March 16, 2018.